Cooper v. Seabd. Air Line R. Co

• Decision Date: 24 September 1913
• Citation: Cooper v. Seabd. Air Line R. Co, 79 S.E. 418, 163 N. C. 150 (N.C. 1913)
• Court: North Carolina Supreme Court
• Parties: COOPER et al. v. SEABOARD AIR LINE R. CO.

79 S.E. 418

(163 N. C. 150)

COOPER et al.

v.SEABOARD AIR LINE R. CO.

Supreme Court of North Carolina.

Sept. 24, 1913.

Appeal from Superior Court, Chatham County; Adams, Judge.

Action by Bessie Cooper and others against the Seaboard Air Line Railroad Company.From a judgment for plaintiffs, defendant appeals.Affirmed.

Murray Allen, of Raleigh, for appellant.

Hayes' & Bynum, of Pittsboro, for appellees.

ALLEN, J.[1] The principal exception relied on is to the admission of certain evidence of Dr. Farthing, an expert witness, which was important to the plaintiff, and which was withdrawn by the court from the consideration of the jury; the defendant contending that, although withdrawn from the jury, its impression upon the minds of the jurors remained and affected their verdict.

The authorities are all to the effect that it was not only within the power, but that it was the duty, of the judge to withdraw evidence, which he concluded had been improperly admitted (Gilbert v. Jones, 86 N. C. 248;Bridgers v. Dill, 97 N. C. 225, 1 S. E. 767: Wilson v. Manf. Co., 120 N. C. 95, 26 S. E. 629); and the rule is fully recognized in Parrott v. Railroad, 140 N. C. 547, 53 S. E. 432, relied on by the defendant, in which Justice Brown, while discussing the withdrawal of evidence, says: "His honor withdrew the consideration of all of it from the jury in a very clear and distinct manner.In doing so, we do not think his honor exceeded his authority.When we can see that the appellant has been really injured by such action, we will always order a new trial."

We cannot see from the record that the defendant has been injured, and, if we were to base a reversal upon the theory of the defendant, we would be acting upon mere conjecture, unsupported by any fact.

The qualifications of jurors prescribed by the statute are that they shall be men "of good moral character and of sufficient intelligence, ""good and lawful men" of the Constitution, and, as the presumption is that the public officers intrusted with the duty to make up the jury lists have performed their duty, we must assume, until the contrary appears, that there was no man on the jury in this action who could not understand the direction of the judge not to consider certain evidence, or who would not honestly obey the instruction.

The present Chief Justice said, in Wilson v. Manf. Co., 120 N. C. 95, 26 S. E. 630: "If the jury are to be deemed intelligentenough to obey his instructions in the charge, they must also be able to comprehend his instruction that certain evidence had been improperly admitted and is not to be considered by them."

The comments of Mr. Creasy on the jury system, in his work on the English Constitution, may be appropriately applied to our own juries.He says: "Juries are, of course, liable to error; and when they err, their blunders are made in public, and draw at least a full share of notice; but, on the other hand, we should remember the invariable honesty and the almost invariable patience with which juries address themselves to their duty.No spectacle is more mark-worthy than that which our common-law courts continually offer of the unflagging attention and resolute determination to act fairly and do their best, which is shown by jurors, though wearied by the length of trials, which are frequently rendered more and more wearisome by needless cross-examinations and unduly prolix...